The Idea That is America reminds us of the essential principles on which our nation was established: liberty, democracy, equality, justice, tolerance, humility, and faith. These are the values that have shaped our history and that bind us together as a nation. We have struggled to make them real, through the civil rights movements for women, African-Americans and other minorities; through campaigns for religious tolerance and tolerance of wave of immigrants; through demands for voting rights and equal protection of the law; and through the steady surge of reform and resistance that defines our democracy. When we seek to promote and support these values in the rest of the world, we must be honest about these struggles and about our own imperfections. We have much to learn from other nations as well as to teach.

American needs a values-based foreign policy that is true to our actual values. The Idea That Is America offers a set of foreign policy proposals that meet this standard and that provide a roadmap for getting our nation back on track in the world. We as a nation cannot afford to give up even the smallest part of the idea that is America.

Friday, June 8, 2007

The International Court of Justice sat for four days this week in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia). Transcripts of the oral proceedings are here; other documents can be found here.

In its application, filed on December 6, 2001, Nicaragua requested the Court to adjudge and declare:

First, that . . . Nicaragua has sovereignty over the islands of Providencia, San Andres and Santa Catalina and all the appurtenant islands and keys, and also over the Roncador, Serrana, Serranilla and Quitasueño keys (in so far as they are capable of appropriation);

Second, in the light of the determinations concerning title requested above, the Court is asked further to determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Colombia, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary.

Nicaragua also reserved the right to request compensation.

Colombia submitted its preliminary objections on July 21, 2003, and this week's proceedings focused on these.

At the conclusion of the proceedings, Colombia made the following submissions:

Pursuant to Article 60 of the Rules of Court, having regard to Colombia’s pleadings, written and oral, Colombia respectfully requests the Court to adjudge and declare that:

(1) under the Pact of Bogotá, and in particular in pursuance of Articles VI and XXXIV, the Court declares itself to be without jurisdiction to hear the controversy submitted to it by Nicaragua under Article XXXI, and declares that controversy ended;

(2) under Article 36, paragraph 2, of the Statute of the Court, the Court has no jurisdiction to entertain Nicaragua’s Application; and that

(3) Nicaragua’s Application is dismissed.

Nicaragua made the following submissions:

In accordance with Article 60 of the Rules of Court and having regard to the pleadings, written and oral, the Republic of Nicaragua respectfully requests to the Court, to adjudge and declare that:

1. The Preliminary Objections submitted by the Republic of Colombia, both in respect of the jurisdiction based upon the Pact of Bogotá, and in respect of the jurisdiction based upon Article 36, paragraph 2, of the Statute of the Court, are invalid.

2. In the alternative, the Court is requested to adjudge and declare, in accordance with the provisions of Article 79, paragraph 7, of the Rules of Court that the Objections submitted by the Republic of Colombia do not have an exclusively preliminary character.

3. In addition, the Republic of Nicaragua requests the Court to reject the request of the Republic of Colombia to declare the controversy submitted to it by Nicaragua under Article XXXI of the Pact of Bogotá ‘ended’, in accordance with Articles VI and XXXIV of the same instrument.

4. Any other matters not explicitly dealt with in the foregoing Written Statement and oral pleadings, are expressly reserved for the merits phase of this proceeding.

Sanjaya Bahel, a former UN procurement supervisor, was convicted yesterday of fraud and corruption charges in Manhattan federal court. See Department of Justice press release here, UN News Service story here, and Secretary-General Ban's statement here. At the request of the United States, then-Secretary-General Annan waived Bahel's UN immunities prior to his arrest last year. Bahel's conviction comes three months to the day after Vladimir Kuznetsov, former chair of the UN's Advisory Committee on Administrative and Budgetary Questions, was found guilty of conspiracy to commit money laundering, also by a jury in the U.S. District Court for the Southern District of New York. See here; see also United States v. Kuznetsov, 442 F. Supp. 2d 102 (S.D.N.Y. 2006). Kuznetsov's co-conspirator was Alexander Yakovlev, who pled guilty to fraud and money laundering charges in August 2005. See here.

These convictions and pleas stem from federal investigations of corruption at the UN, including in the Oil-for-Food Program (OFF). The highest-level OFF indictment to date has been of Benon Sevan and Ephraim Nadler (unsealed in January of this year). They are charged with fraud, corruption, bribery, and conspiracy to commit those offenses. See here. Sevan was the executive director of the UN's Office of Iraq Programme, which operated the OFF. He is now in his native Cyprus. If he remains there, it is unlikely that he'll face charges in the United States, as the U.S.-Cyprus Extradition Treaty does not require the parties to extradite their own nationals. See here.

There have been a number of other OFF-related indictments, pleas, and convictions. In 2005, three persons and two corporate entities were indicted for participation in an illegal kickback scheme related to the OFF. See here. In July 2006, Tongsun Park was convicted of conspiracy to act as an unregistered agent of the Government of Iraq in connection with the creation of the OFF. See here. And in January 2005, Samir Vincent pled guilty to similar charges. See here.

The 20th century has been described as the "Century of Genocide". It opened in 1915 with the mass-killing of almost 1.5 million Armenians by Ottoman Turkey, and its apotheosis was the extermination of 6 million Jews in the Holocaust. The Nazi "Final Solution" was not an expression of residual pre-modern barbarity. It occurred in the heart of Western civilization and shook the blind confidence in modernity's promise of progress. In the wake of this unprecedented calamity, and thanks to the relentless efforts of Raphael Lemkin, a Polish jurist who lost his entire family in the Holocaust, the United Nations adopted the 1948 Genocide Convention and undertook to prevent and punish this odious scourge. But the vow to never again allow such horrors to happen lost all credibility as millions became victims of State-sponsored genocide, from the Biafran civil war in Nigeria, to Idi Amin's Uganda, and Mengistu's Ethiopia, from the killing fields of Cambodia under the Khmer Rouge, to the extermination of Mayan Indians by the Guatemalan military. The end of the Cold War brought with it a promise of a better future. But the euphoric delusion that we had arrived at "the end of history" was shattered by the horrors of "ethnic cleansing" in the former Yugoslavia and the abominable 1994 Rwandan genocide which consumed the lives of almost 1 million in just three months. And while we remember and mourn all these tragedies, yet another genocide unfolds in the Darfur region of Sudan, in the opening years of the 21st century.

Genocide is not a natural disaster. It is not an earthquake or tsunami. Nor is it a spontaneous outburst of primordial hatred, or an inevitable, irreversible clash of civilizations. It is a deliberate political choice, a man-made disaster, instigated by ruthless leaders who use mass violence as an instrument of power. As such, it is a preventable phenomenon, and its prevention is an unavoidable moral challenge to us all. While genocide cannot be predicted with mathematical exactitude, there are indicia, warning signs, that foretell its possibility, and which provide an opportunity to arrest ethnic hate-mongering and violence before it escalates into an all-consuming cataclysm. There have also been efforts to integrate the concept of prevention into global institutions such as the appointment in 2004 of a UN Special Advisor on Prevention of Genocide, entrusted with the task of providing early warning of situations that may lead to such violence. The need for sustainable preemption of mass violence is only magnified by the proliferation of weapons of mass destruction in an age of global terrorism and the manifest failures of hegemonic militant survivalism as a response. In an inextricably interdependent and volatile world, a policy and cultural focus on human rights is not an expression of naive idealism but rather, the only realistic basis for global governance and long-term stability.

The Global Conference on Prevention of Genocide is a response to the urgent challenge confronting our generation. It aims to bring together eminent intellectual, political, and civil society leaders from the four corners of the planet, in an effort to explore means of preventing genocidal violence, rather than focusing on intervention after the fact. The Conference is intended as a platform not only for informed dialogue and academic exchange on pressing issues, but also for a broader engagement with a view to shaping public debate and policy, and building networks of solidarity and cooperation among a broad range of actors dedicated to progressive change.

John B. Bellinger III, Legal Adviser to the U.S. Secretary of State, gave a speech yesterday in The Hague entitled "The United States and International Law." It is the latest in a series of talks in which he argues that international law matters to the United States. The full text is available here. An excerpt:

Some of you may think it rather bold of me to come to a city renowned for its institutions of international peace, justice, and security and talk about the United States' commitment to international law. It is hardly news that the United States has taken a battering in Europe, particularly over the last few years, for its commitment to international law - or, rather, what is criticized as its lack of commitment.

To put it simply, our critics sometimes paint the United States as a country willing to duck or shrug off international obligations when they prove constraining or inconvenient.

That picture is wrong. The United States does believe that international law matters. We help develop it, rely on it, abide by it, and - contrary to some impressions - it has an important role in our nation's Constitution and domestic law. . . .

Tonight I will show you how we have kept the Secretary's promise. I will demonstrate that our approach to international law - how and why we assume international obligations, how we implement those we have assumed, and how international law binds us in our domestic system - all reinforce our commitment to international law. In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior - although couched as legal criticism - are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law - when we have simply not reached the result or interpretation that these critics prefer.

Wokring sessions of the annual G8 Summit, this year in Heiligendamm, Germany, begin today. The German Government, which holds the rotating presidency and is serving as host, has set the main topics of the agenda (program outline here; short version of the Summit themes here; a longer one here) as "shaping globalisation, climate protection and helping Africa to develop." Though the Heads of State gathering is of obvious importance, much G8 work and decisionmaking is done earlier and at lower levels. In the months and weeks leading up to the Summit, ministers gather, including, this year, finance (and national central bank governors), justice and interior, development, and environment ministers. And to prepare the ministers, lower-level officials meet. For example, for the Justice and Interior Ministers Meeting, which took place this year on May 23-25 in Munich, much preliminary work is done by the Lyon/Roma Group, which focuses on counterterrorism and organized crime. The declarations made by the ministers are of interest, as they indicate areas of commonality, cooperation, and direction among these States. The Justice and Interior Ministers adopted three such declarations: a concluding declaration, which focused on counterterrorism, intellectual property rights enforcement, combating sexual abuse of children, recovery of the proceeds of corruption, and integration of immigrants, a declaration on Afghanistan counternarcotics, and a declaration reinforcing the international fight against child pornography. When the Foreign Ministers met in Potsdam on May 30, in addition to discussing Kosovo, Iran, North Korea, and many other matters of concern, they adopted a declaration on the rule of law. Such declarations might be casually dismissed as nonbinding and hortatory, but their careful negotiation and subsequent lives belie such simple characterizations. We will see what comes of the main event.

Lewis & Clark Law Review's Symposium "Domestic Enforcement of Public International Law After Sanchez-Llamas v. Oregon" is now out (Vol. 11, no. 1, Spring 2007). The papers are available here. Contents include:

John T. Parry, Sanchez-Llamas in Context

Julian G. Ku, Sanchez-Llamas v. Oregon: Stepping Back from the New World Court Order

This paper details how the Islamic Republic of Iran has flouted international law with impunity over the last three decades, a trend that has accelerated in recent years and become more dangerous with Iran's illegal pursuit of nuclear weapons. Part I reviews Iran's history of unpunished violent breaches of international law, including the seizure of U.S. diplomats for over a year, the Iranian-directed bombing of the U.S. Embassy in Beirut, the bombings of the Israeli Embassy and Jewish cultural center in Argentina, Iranian assassinations of dissidents in Europe, President Ahmadinejad's repeated urgings that Israel be wiped off the map, and Iran's support for and harboring of terrorists. Part II of the paper examines the Iranian regime's ideology.

Part III details Iran's violations of international laws relating to nuclear nonproliferation and analyzes the international community's hesitant and tepid response to those violations. The paper finds that Iran's heavy dependence on oil exports and other foreign trade leaves Iran highly vulnerable to strong economic sanctions. Yet the sanctions imposed by UN Security Council Resolution 1737 of December 2006 and Resolution 1747 of March 2007 are remarkably weak, too weak to coerce Iran into compliance, contain Iran's ability to advance its nuclear weapons program, or deter other states from following Iran's lead. As the paper describes, the international community has in recent years witnessed comprehensive sanctions stopping both illicit nuclear weapons programs and terrorism. Yet the sanctions contained in Resolutions 1737 and 1747 are far weaker than the sanctions which stopped the Iraqi and Libyan nuclear weapons programs. The paper concludes that so long as the international community continues to fail to hold Iran accountable for its violations of international law, Iran will likely continue to engage in such violations, with increasingly dangerous consequences.

Tuesday, June 5, 2007

At OpinioJuris, Julian Kunotes the arrest yesterday of a number of persons for, among other things, violation of the Neutrality Act, 18 USC 960, for allegedly conspiring to prepare and take part in a military expedition against the Government of Laos. (See here for the criminal complaint and here for the Department of Justice press release.) Ku comments on the Neutrality Act allegation: "It is not, needless to say, invoked all that often." True enough, but this is at least the third set of arrests of persons for engaging in Southeast Asian insurgencies in the last six years and the second involving the Neutrality Act. Van DucVo, of the California-based Government of Free Vietnam, was arrested in October 2001 and charged with conspiring to use a weapon of mass destruction outside the United States, in violation of 18 USC 2332a(b). (The charges against Vo were later dropped when the Government of Thailand requested his extradition. See here for the Ninth Circuit decision upholding the extradition certification.) And YasithChhun, the president of the Cambodian Freedom Fighters (also based in California), was arrested on June 1, 2005, for, among other things, violation of the Neutrality Act. (See here for the Department of Justice press release.) Interestingly, the Neutrality Act has also been used recently in terrorism prosecutions, including those of Ali Al-Timimi (see indictment here) and Masoud Ahmad Khan and others (see Fourth Circuit opinion here affirming the convictions).

The fortieth session of the United Nations Commission on International Trade Law (UNCITRAL) will commence on June 25 in Vienna and continue through July 12. The formal deliberations will focus on the draft UNCITRAL legislative guide on secured transactions. Following the conclusion of the formal deliberations, UNICTRAL will hold the Congress "Modern Law for Global Commerce", which "will provide an opportunity to review the working methods and achievements of UNCITRAL, as well as related work of other organizations active in the field of international trade law, assess ongoing work and consider and evaluate topics for future work programmes." The session's provisional agenda is here, and documents (including the draft legislative guide and the reports of the working groups) are here.

Tax flight (the evasion of income taxes through the use of offshore tax havens) poses a $50 billion-a-year problem for the United States. Through tax flight treaties, the United States could make payments to tax havens that would give those countries both the resources and the incentive they need to develop the administrative capacity necessary to supply the U.S. with income tax information. Such treaties likely would reduce the United States' collective well-being, particularly if measured in simple GDP terms. Therefore, a simplistic "philosopher king" model of international tax law, which assumes that governments only engage in cross-border tax cooperation to boost their respective GDPs, would suggest that tax flight treaties could not be effective. This Article argues that a more sophisticated model of inter-governmental behavior (Oona Hathaway's "integrated theory") supports a more optimistic conclusion regarding the potential of tax flight treaties.

Marjan Peeters, European Climate Change Policy: Critical Issues and Challenges for the Future

Patricia Park, Implementation of the European Union Emissions-Trading Scheme in the United Kingdom: Some Lessons to be Learned

Rodrigo Sales & Bruno Kerlakian Sabbag, Environmental Requirements and Additionality under the Clean Development Mechanism: A Legal Review under the UNFCCC, the Kyoto Protocol, and the Brazilian Legal Framework on Climate Change

The conventional view of international society is that it is interested only in co-existence and order amongst states. This creates a puzzle. When the historical record is examined, we discover that international society has repeatedly signed up to normative principles that go well beyond this purpose. When it has done so, it has built new normative constraints into international legitimacy, and this is most conspicuously so when it has espoused broadly humanitarian principles. This suggests that the norms adopted by international society might be encouraged from the distinct constituency of world society.

The book traces a series of historical case studies which issued in international affirmation of such principles: slave-trade abolition in 1815; the public conscience in 1899; social justice (but not racial equality) in 1919; human rights in 1945; and democracy as the only acceptable form of state in 1990. In each case, evidence is presented of world-society actors (transnational movements, advocacy networks, and INGOs) making the political running in support of a new principle, often in alliance with a leading state. At the same time, world society has mounted a normative case, and this can be seen as a degree of normative integration between international and world society. Each of the cases tells a fascinating story in its own right. Collectively, they contribute to the growing IR literature on the role of norms, and especially that written from a broadly English School or constructivist perspective. The book thereby puts some real historical flesh on the concept of world society, while forcing us to reconsider traditional views about the 'essential' nature of international society.